1982 PLP 132 (PLC)

"Mr. Ziauddin, Cost Accountant, P. S. F. KARACHI. Dear Sir, Further to our letter No. PSF/MD/HS dated 29th April, 1978, wherein your probationary period was extended by three months w.e.f. 2nd May, 1976 and you were advised to improve your performance. We have closely watched your performance and we found that your performance was not upto the required standard. We, therefore, have no option but to terminate your services with immediate effect. You are requested to collect your dues from our Accounts Depart ment."

3. The respondent challenged the termination of his services before the learned Fifth Labour Court which dismissed his grievance petition, by its decision, dated 24th May, 1979, on the ground that his services had been terminated during the probationary period in accordance with the terms and conditions of his appointment. On appeal to this Tribunal it was observed that the material question which should have engaged the attention of the learned Labour Court was whether the appellant (now respondent) was a "workman" for the purposes of the Standing Orders, 1968 and that this question was important because if the appellant was a workman for the purposes of the said Ordinance his probationary period was to be governed by Standing Order 1 and was to be limited to three months. The case was accordingly remanded to the learned Labour Court to give a finding on the issue whether the respondent was workman for the purposes of the Standing Orders. On remand the learned First Labour Court to which the case had been transferred for disposal, has held that the respondent was a workman for the purposes of the Standing Orders and that his services had been illegally terminat ed in violation of the said Order. It accordingly has directed reinstate ment of the respondent with full back benefits. This time it is the manage ment which has come up in appeal against the impugned decision.

4. I have heard Mr. H. A. Jafri, the learned counsel for the appel lant, and Mr. Ali Amjad, Advocate, who appeared for the respondent. The main contention of Mr. Jafri was that the respondent was not a workman for the purpose of the Standing Orders and, accordingly, was not entitled to file and maintain a grievance petition against the termina tion of his services. In support of his contention Mr. Jafri relied upon two pieces of evidence, firstly, the letter of appointment and, secondly, the evidence of the appellant's witness, Jamilur Rehman, Arshi, that two clerks, an assistant and a cashier were working under the respon dent. The letter of appointment of the respondent indicates that he was appointed on basic salary of Rs. 750 p. m. to the scale of Rs. 550

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50/EB

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1250, plus house rent allowance at the rate of 30% of the pay, subject to a minimum of Rs. 300 p. m., plus conveyance allowance of Rs. 100 p. m. In addition he was allowed cost of living allowance as laid down in the Employees' Cost of Living (Amendment) Ordinance, 1974 and Additional Dearness Allowance at the fiat rate of Rs. 25 p. m. The total monetary benefits admissible to the respondent immediately before the termination of his services are said to amount to Rs. 1,

285. The appointment letter further indicates that the respondent was liable to transfer in any establishment managed by the Government under the Economic Reforms Order, 1974. The only indication given in the letter of appointment as to the nature of duties which the respondent was expected to perform is in paragraph 8 of the appointment letter which reads as follows :-- "You shall be required to promote the interests of the Corporation or establishment to which you are transferred to the best of your ability, skill and knowledge and devote to your duties the whole of your time and attention. You shall not, without consent of the Company during the continuance of your employ ment hereunder be engaged or interested, either directly or in directly in any capacity in any trade, business or occupation whatsoever including any public or private work which, in the opinion of the Company, may hinder or interfere with the per formance of your duties."

5. It will be seen that the above paragraph merely talks of the general responsibilities of the respondent towards the Company but hardly gives, any indication as to the exact nature of duties which the respondent was required to perform. As regards the emoluments of the respondent apart front the fact that they do not appear to be munificent as compared to the respondent's highsounding designation, it may be mentioned that the wages to be paid to an employee should not be the determining or even the most important factor for ascertaining whether he is a workman for the purposes of the Standing Orders. There, thus, remains only the evidence of Mr. Jamilur Rehman Arshi who testified voluntarily during the cross examination that two clerks, an assistant and a cashier were working under the respondent. Apart from the fact that no document in support of his evidence was produced by the appellants no question was suggested to the; respondent during his evidence before the learned Labour Court that any clerks or other staff was working under him. On the other hand, in his affidavit before the learned Labour Court not only has the respondent specifically denied that any assistant or staff were working under him but he has very clearly asserted that whatever work was required to be done by him it was to be carried out by him in person without any assistance. As regards the nature of his duties he has detail ed them as follows :- "That my work programme or duties were assigned to me by the General Manager Finance from time to time and under these instructions I used to collect datas in respect of the various Depart ments by filling up the forms prepared in the form for this purpose, to compile the figures and to prepare a costing report and other reports on the basis of figures available."

6. In paragraph 3 of his affidavit the respondent has given the hierarchy in the Finance Department of the appellants, which consisted of General Manager Finance, Deputy Chief Accounts Assistant, Store Ledger Clerk Wages Assistant and General Accounts Assistant. If the evidence of the respondent is to be relied upon he occupied some, what lower than middling position in the Finance Department of the appellant organization. As there is no tangible evidence on behalf of the appel lants as to the exact nature of duties which the respondent was required to perform I am constrained to accept the un-rebutted testimony of the respondent that he was required to perform his duties personally and without assistance and that further the nature of his duties was mainly, clerical. As was pointed out by a learned Single Judge of the High Court in the case of Dost Muhammad Cotton Mill Ltd. v. Muhammad Abdul Ghani (P L D 1975 Kar: 342), the determination of the question whether an emp loyee is a workman for the purposes of the Standing Orders is not depen dant upon his designation or salary but it is the work and answerability for his performance which are the sole criteria for judging his status. The work of the respondent as already pointed out appears to be clerical in nature and of a routine character. As such I would agree with the view of the learned Labour Court that the respondent was a workman for the purposes of the Standing Orders.

7. It was next sought to be contended by Mr. H. A. Jafri that even if the respondent is considered to be a workman for the purposes of the Standing Orders, he was a probationer and his services were terminated during the period of his probation. This contention has no substance. Sub-clause (c) of clause (i) of Standing Order I defines a "probationer" as a workman who is provisionally employed to fill a permanent vacancy] in a post and has not completed three months service therein. As the C respondent had completed more than nine months' service in the appellant organization he cannot be considered to be probationer for the pur poses of the Standing Orders. Mr. Jafri, however, contended that a probationer can only be considered to have become a permanent work man for the purposes of the Standing Orders if he has satisfactorily com pleted the probationary period of three months but according to him the respondent had not satisfactorily completed his probationary period of three months. This contention, is equally devoid of substance. In the first place the respondent was appointed as a probationer not for a period of three months but for a period of six months which period was extended. Moreover the respondent was not informed either before the expiry of his three months probationary period or immediately, after the expiry that his probationary period has not been considered satisfactory. The mere fact that the initial probationary period of six months of the respondent was extended by a period of three months cannot give rise to the inference that the- respondent bad not satisfactorily completed the probationary period of three months. I am, therefore, of the view that at the time his services were terminated the respondent was deemed to be a permanent workman for the purposes of the Standing Orders.

8. It was finally contended by Mr. H. A. Jafri that in any case of the respondent cannot be allowed back benefits for the full period that he had been kept out of employment of the respondent organization, Sub-clause (5) of section 25-A, I. R. O., lays down that in adjudicating a grievance petition the Labour Court shall go into all the facts of their case and pass such orders as may be just and proper in the circumstance of the case. It is thus necessary for a Court to examine the issue of back benefits carefully and to give adequate reasons in support of this findings and decision as to the quantem of back benefits to which the workman is considered entitled. In the instant case, the learned Labour Court unfortunately has not examined this aspect of the case and has machanically awarded full back benefits to the respondent mainly on the basis of the fact that the service of the respondent were wrongly termi nated by the appellant Organization. This may be one of the factors which have to be taken into consideration in determining whether back benefits should be awarded to the workman and if so to what extent, but it is not the sole or even the most important factor to the award of the back benefits. The other factors which appropriately are to be taken into consideration are whether the workman during the intervening period was or was not gainfully employed elsewhere and whether the proceedings bad been unduly delayed by one or the other party or due to the actions of the Court itself. It is a well-established principle that no party should be allowed to suffer on account of any mistake of the Court. In the instant case the original order of termination of services was passed on 31st July, 1976. The grievance petition was filed on 29th September, 1976. The proceedings before the Courts have thus taken an unduly long period of five years, during which the case came up before the Tribunal thrice, once an appeal by the respondent against the decision of the learned Fifth Labour Court given on 24th May, 1979, again in the form of in formation for exercise of suo mote powers of revision of this Tribunal for setting aside the order of the learned- Labour Court closing the side of the respondent, and now thirdly by way of an appeal by the appellant against the order of the learned Labour Court. As there was no evidence on the record of the learned Labour Court whether the respondent during the intervening period was gainful employed, I enquired from the res pondent whether he had been gainfully employed. He frankly answered that during certain periods of this time he had obtained part-time em ployment. Taking all these circumstances into consideration and also the important circumstances that the appellant organization is a Govern ment run industry, I would, while upholding the order of the learned Labour Court regarding the re-instatement in service of the respondent, modify the order of the learned Labour Court regarding grant of back benefits and allow the respondent back benefits to the extent of 50%. The appellants have deposited an amount of Rs. 72,500 towards the F back benefits awarded by the learned Labour Court to the respondent. Let the amount of back benefits awarded to the respondent be paid to him out of the aforesaid amount of Rs. 72,500 and the balance be refunded to the appellants.